This properly exhausts the subject of this study. I shall only add a few random observations.
I am quite aware that the term "social" is very vague and indefinite, and that one really has not said anything very distinct when he has talked about social, economic, ethical, and similar influences that are felt "to a certain extent." Yet I believe that it is not altogether useless merely to call attention to the actual existence of such influences.
Above all things, such a suggestion opens to juridico-sociological research a large field hitherto but little cultivated. That is the positive examination of the third component element in juridical thinking, which affects its processes side by side with knowledge of the law and recognition of pure facts. Among the various forms assumed by this problem I refer again to one touched upon above.189
Code was adopted the matter was not thought of. Such cases are due to recent economic developments. The next logical step, it would seem, ought to be the conclusion that we need not look further in the Commercial Code. That conclusion, however, a lawyer will avoid if there is a possibility of doing so. The writer, therefore, solves the problem in a rather complicated way by reference to the words "under the name of their firm" in section 111 of the Commercial Code. It was impossible for him. in doing so, to avoid a "petitio principii" in his argument, which an exact logical test will discover at every step.
After what has been said we must assume as certain that a judge cannot remain uninfluenced by social currents of sentiment (and volition) if he is to perform his functions in an adequate manner. The circumstance that this is emphatically denied by the current theory of interpretation (except in so far as the question is simply avoided), and that according to this theory the judge is a purely reasoning being, a sort of automaton producing judgments,190 is connected with the normative point of view of that theory, which treats rules of interpretation as if they were legal precepts and nothing more. It is, of course, impossible to prescribe to the judge what kind of feeling he will allow to influence his decision, even if that feeling is to refer merely to social estimates.
On the other hand, even if for no other reason than on account of the constant insistence on the greatest possible independence of the courts as a constitutional principle and the necessity of keeping them as remote as possible from the turmoil of business life, yet it is clear that there are some influences, even influences of a social nature, which are not compatible with the juridical way of thinking. Now if lack of bias in the judge means that he is to be independent of certain social influences, but not of all of them, then the question arises: which influences are to be eliminated? An illustration may make this problem more realistic.
189 Sec. 4.
190 The denial, as far as mere form goes, of all independent exercise of volition on the part of the judge extends even to those cases where it is impossible to conceal that he is exercising discretion, because the law expressly directs that he should do so, as for instance in fixing alimony. The formal denial is apparent in these ways:
1. By classifying all such cases in the common category of "equity," in the belief that they can be reduced to a single common principle. See, for example, Pfaff-Hoffmann, "Kommentar," page 208, where "equity" is made synonymous with "establishing relative equality."
2. By representing "equity" as something entirely different from ordinary juridical thinking.
3. By representing such "equity" as something very exceptional, to come into play only where the statute expressly requires it.
In the Court of Administration [Verwaltungs-Ge-richt] a lawsuit was recently determined, in which the complaint was based on the proposition that a certain tax levy was invalid. The levy was made in accordance with section 14 of the [Austrian] Constitution [which permits the Government, in certain emergencies, to collect taxes without previous grant from Parliament]. It was complained that there had been an obstruction in the House of Representatives against the necessary grant of money. It was claimed that certain conditions necessary to authorize such action had not existed, and the principal issue was whether the court was authorized at all to enter into the question of the validity of an executive order having the force of law. Under the Constitution, the courts may question the validity of executive orders, but not of statutes. The issue was not expressly provided for in the Constitution, and it would be doubtful, to say the least, what was in the minds of the legislators in 1867, when the instrument was adopted.
Let us suppose now that one of the judges was inclined to hold with the plaintiff because he maintained the view which was best founded historically. But that at the same time this judge realized that to declare the executive emergency order invalid would mean the worst sort of conflict between the courts and the conditions necessary for the very existence of the State, and that public order would be thrown into chaos. Would it be unjuridical, in such a case, to dismiss the complaint? Would it be possible to write an opinion containing these reasons for the dismissal, or would that show bias on the part of the judge? Is it socially permissible for the courts to close their eyes to such considerations and thereby saw off, so to speak, the limb on which they are sitting? In other words, is it proper, and if so to what extent, to erect into a principle of the administration of law the conscious consideration of questions growing out of the fundamental necessities of life within a State?
Legal science would succeed in stopping the principal breach in its ramparts through which uncertainty of the law (or rather uncertainty in its administration) may enter, if this and many other problems could be solved in proved harmony with social evolution, and not merely on the basis of subjective feeling; if the social forces and value judgments, which are now concealed and operating without being consciously adopted, could be transformed into clearly conceived logical formulas of definitely limited effectiveness. That, however, is a matter for future days. To be sure, in part such transformation is going on all the time whenever a new legal rule is made, for every legal institution or principle is really an attempt, more or less successful, to express a social tendency in logical form. However, this is never accomplished but very imperfectly, by persistent experiments that are often failures, and in the minutest degrees only. For to make laws is a matter of political action rather than scientific labor.